| Matter of Trestin T. (Shawn U.) |
| 2011 NY Slip Op 02505 [82 AD3d 1535] |
| March 31, 2011 |
| Appellate Division, Third Department |
| In the Matter of Trestin T., a Child Alleged to be PermanentlyNeglected. Cortland County Department of Social Services, Respondent; Shawn U., Appellant.(And Another Related Proceeding.) |
—[*1] Anthony L. Germano, Cortland County Department of Social Services, Cortland, forrespondent. Margaret McCarthy, Ithaca, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Cortland County (Ames, J.), enteredApril 14, 2010, which, among other things, granted petitioner's application, in a proceedingpursuant to Social Services Law § 384-b, to adjudicate Trestin T. a permanently neglectedchild, and terminated respondent's parental rights.
Respondent is the biological father of Trestin T. (born in 2006), who was placed in fostercare two days after his birth. The child's mother surrendered her parental rights to petitioner.Respondent, who has a history of sexual misconduct, has been incarcerated for attempted rape inthe first degree since before the child's birth.
In October 2009, petitioner commenced this proceeding against respondent requesting thatthe child be adjudicated permanently neglected and respondent's parental rights be [*2]terminated. Following a fact-finding hearing, Family Court foundthat respondent did not adequately plan for the future of the child and adjudicated the child to bepermanently neglected. Thereafter, a dispositional hearing was held, at the conclusion of whichthe court ordered respondent's parental rights terminated, committed the child to petitioner andfreed him for adoption. This appeal ensued.[FN*]
We are unpersuaded by respondent's contention that petitioner did not prove by clear andconvincing evidence that it made diligent efforts to encourage and strengthen the parent-childrelationship between him and the child during his incarceration (see Social Services Law§ 384-b [7] [a]; Matter ofLawrence KK. [Lawrence LL.], 72 AD3d 1233, 1234 [2010], lv denied 14NY3d 713 [2010]). The record establishes that petitioner's caseworkers provided respondent withthe permanency reports, developed an appropriate service plan to address pertinent issues andapprised him of the child's well-being. Petitioner's caseworkers met with respondent at prison,arranged to speak with him by telephone and spoke to prison personnel regarding his progress invarious prison programs. Furthermore, petitioner delivered cards from respondent to the childand arranged visitation between the child and the paternal grandmother. Notably, visitationbetween respondent and the child was not required inasmuch as respondent agreed, in 2007, to anorder prohibiting visitation until his successful completion of a sex offender treatment program,which, at the commencement of this proceeding, he had yet to accomplish. Petitioner alsoinvestigated possible placement with relatives suggested by respondent, none of which weredeemed suitable. In our view, Family Court properly found that petitioner made the requisitereasonable and diligent efforts (seeMatter of Kaiden AA. [John BB.], 81 AD3d 1209, 1209-1210 [2011]; Matter ofLawrence KK. [Lawrence LL.], 72 AD3d at 1234).
Next, although there is no dispute that respondent maintained contact with petitionerregarding the child, respondent was required, despite his incarceration, to develop a realistic planfor the child's future (see Social Services Law § 384-b [7] [a]; Matter of KaidenAA., 81 AD3d at 1210; Matter of Abdul W., 224 AD2d 875, 876 [1996]). This hedid not do. The family members that respondent suggested as possible placement resources forthe child proved to be unavailable or unsuitable. Furthermore, even with respondent's anticipatedrelease from prison, the record demonstrates that compliance with the service plan would take atleast a year, thereby subjecting the child to a longer term in foster care. Absent any feasible planfor the child's future, other than long-term foster care, we find no basis under the circumstancesherein to disturb Family Court's finding of permanent neglect (see Matter of Amanda C.,281 AD2d 714, 716-717 [2001], lv denied 96 NY2d 714 [2001]).
Finally, respondent contends that Family Court erred in not granting his request for asuspended judgment rather than terminating his parental rights. We disagree. Given the totality ofcircumstances, including the prospect that the child will remain in foster care for an extendedperiod of time, the lack of a relationship between respondent and the child, and the bond thechild has with the foster family who has cared for him since birth, we are unpersuaded thattermination of respondent's parental rights was not in the child's best interest (see Matter of Anastasia FF., 66 AD3d1185, 1187 [2009], lv denied 13 NY3d 716 [2010]).[*3]
Spain, J.P., Lahtinen and Garry, JJ., concur. Ordered thatthe order is affirmed, without costs.
Footnote *: Respondent apparentlypetitioned to modify his visitation with the child. That petition was dismissed as moot in theorder appealed and no challenge thereto has been raised on this appeal.